The Ohio Supreme Court ruled last week that the Cleveland voucher program passes muster under the religion clauses of the federal and state constitutions, but that it had to be invalidated because of the way it was enacted.
The ruling means the program will end after this school year unless the state legislature reauthorizes it through a “one-subject bill.” The court said the legislature violated a provision of the state constitution in 1995 by tacking the voucher program on to an appropriations bill.
But the court rejected broader challenges to the voucher program based on the First Amendment’s prohibition against government establishment of religion, as well as on similar provisions of the state constitution.
“Whatever link between government and religion is created by the school voucher program is indirect, depending only on the genuinely independent and private choices of individual parents,” the May 27 ruling in Simmons-Harris v. Goff said.
Both sides in the national debate over publicly funded tuition vouchers for private and religious school students saw reasons to claim victory.
“We now have a very powerful trio of state supreme court precedents upholding the First Amendment constitutionality of school choice,” said Clint Bolick, the litigation director of the Washington-based Institute for Justice. The institute represented voucher parents in the Cleveland case and also worked on cases in Wisconsin and Arizona in which those states’ supreme courts upheld laws that provide or promote private school choice.
Robert H. Chanin, the general counsel of the National Education Association, said voucher opponents were happy to see the Cleveland program struck down on any grounds.
“Our primary purpose was not to make law but to knock down what we thought was a very bad program,” said Mr. Chanin, who argued the Ohio high court case on behalf of voucher foes. “We’d like to see it stay dead.”
He said the passage of the program as part of an appropriations measure was not a mere technicality but a means for its proponents to get around having a full consideration of vouchers on their merits.
“It was put in an appropriations bill because there was serious doubt that it had the votes to pass as a stand-alone bill,” Mr. Chanin said.
Barry W. Lynn, the executive director of Americans United for Separation of Church and State, said the court “completely missed the point on the church-state issue.”
“The justices struck a blow at the heart of the First Amendment,” he contended, “and ignored clear and unambiguous language in the state constitution.”
Benefit to Children Cited
The Cleveland program, now completing its third full year, provides some 4,000 children from low-income families with state aid of as much as $2,500 a year to attend 57 private schools.
From its start, the program has authorized voucher recipients to attend religious schools, prompting the central challenge from teachers’ unions and other opponents.
A state trial court judge upheld the program. But an appellate court struck it down in 1997, ruling that it violated the federal and state constitutions because it primarily benefited religious schools.
But the state high court said the U.S. Supreme Court’s rulings on government aid to religion had shifted in recent years to uphold general governmental programs that may have an incidental benefit to religion.
“The primary beneficiaries of the school voucher program are children, not sectarian schools,” said the majority ruling by Justice Paul Pfeifer.
The seven-member court appeared to be unanimous in that portion of the ruling, although only four justices signed the opinion. The others signed a concurrence saying they agreed with some of the majority’s reasoning, but found some of the opinion to be “advisory.”
The court split 5-2 on the issue of the single-subject provision of the state constitution.
“We conclude that creation of a substantive program in a general appropriations bill violates the one-subject rule,” the majority said.
The dissenters said the majority invalidated the voucher program “on the basis of a technical procedural infraction.”
Legislative Arena
The high court delayed the effect of its ruling through the end of June to ensure that the current school year would not be disrupted.
The focus now turns to the legislature, which can revive the voucher program with new legislation.
Gov. Bob Taft, a Republican who was not in office when the program was enacted, issued a statement saying that he supports it as a pilot project and does not believe it should be terminated “due to a procedural flaw in legislation.”
“I would support legislation to reinstate the project,” he added.
But state Sen. Robert A. Gardner, the Republican who chairs the Senate education committee, said the ruling could result in a reassessment of the program.
“I know parents are happy with it, but I haven’t seen much accountability data,” he said. “We fund a lot of these pilot projects, but the problem is we don’t take the necessary steps to validate the results.”
Opponents said they would work to try to prevent the program from being reinstated.
“One of the major issues in Ohio since the voucher bill passed is the creation of charter schools, what we call community schools,” said Michael Charney, the spokesman for the Cleveland Teachers Union, an affiliate of the American Federation of Teachers.
He said charter schools in Ohio receive more per-pupil funding than private schools do under the voucher program. Even voucher supporters such as industrialist David Brennan, who has opened two private schools in Cleveland to serve voucher students, now appear to be more enthusiastic about charters, Mr. Charney noted.
“That could negate some of the energy around vouchers,” he said.
